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Fight against false copyright claims goes to Capitol Hill

Retraction Watch readers may recall that in November, we, along with Automattic, the company behind WordPress, filed a lawsuit against someone who filed a false copyright infringement claim about ten of our posts.

On a false pretense — copying and pasting the posts onto a website in India, then claiming that we had plagiarized that site — that person used a law known as the Digital Millenium Copyright Act (DMCA) to force WordPress to remove our posts. Here’s why WordPress had to do that, as Ars Technica had put it a few years earlier:

The Digital Millennium Copyright Act serves many purposes, some of which are good, but certain parts of it are ripe for abuse. The infamous DMCA takedown notice is at the top of anyone’s list of most-abused parts of the act. These notices are meant to make it easy for content owners to have violations removed, and they do. But the notices also make it easy for anyone to try and silence criticism or stifle angles they simply don’t like, even if the party in question is working perfectly within the confines of fair use.

While there are statutory damages for copyright infringement (even if very minor) there are no similar damages, or clear penalties of any kind, for submitting a fraudulent DMCA notice. The lawsuits that we filed represent the only recourse for abuse of the DMCA takedown process. The lawsuits were expensive to bring, time consuming to prosecute, and promise very little in the way of compensation in return. We brought these lawsuits, alongside our users, to protect their important free speech rights and send the message that abuse of the DMCA process has consequences (at least on WordPress.com). Cases like these are extremely rare, and I’m confident in saying that the users would not have the time, resources or sophistication to bring the suits on their own.

The DMCA system gives copyright holders a powerful and easy-to-use weapon: the unilateral right to issue a takedown notice that a website operator (like Automattic) must honor or risk legal liability. The system works so long as copyright owners use this power in good faith. But too often they don’t,and there should be clear legal consequences for those who choose to abuse the system. I’d urge the Committee to add such penalties to the DMCA to deter and punish these types of abuses.

You can read Sieminski’s entire testimony here, and a Wired piece looking at the issue here.

While the _stated_ aim of the DMCA sounds perfectly valid, the actual aim is to allow corporations to remove from the web anything they want. The onus is so completely placed on the target of the takedown notice that only in trivial cases like Retraction Watch can we expect the service providers to allow restoration of the articles. If someone with deep pockets makes it clear that they intend to pursue a DMCA claim (even a transparently bogus one) the material can be kept suppressed indefinitely.

The ISPs must remove material immediately upon receiving a takedown notice. They can only restore it if they decide they are willing to accept the risk or actuality of a lawsuit. That is the way the law was _actually_ intended to work.

Fake DMCA complaints are an easy way of getting rid of content you don’t like. It causes great aggravation to bloggers who challenge charlatans and legitimately false claims. I’ve had experience with a web host whose lawyer would not even do a cursory review of the claim to see if it was bogus, just took down the content and locked me out. When the same complainant came up again on my next host, they were slightly better and I was able to convince them it was bogus and the complainant was full of it. I foresee this is a handy dandy way to throttle free speech. I commend WordPress for standing up for bloggers rights.http://doubtfulnews.com/2013/11/not-only-a-questionable-claim-but-an-absurd-one-our-dmca-complaint/

I was recently on the receiving end of a dubious DMCA notice. The take-down demanded removal of a hyperlink to a parody image (i.e. “Linda Ellis Troll Caricature”) hosted elsewhere. Because that particular image appeared on the first page of Google results and clicking would lead to a blog post critical of Ms. Ellis, I suspect the motivation for the take-down may be to minimize visibility of criticism of Ms. Ellis who appears to have been sending out demands for multiple thousands of dollars to non-profits or others who post her poem on lightly visited web page (see http://rankexploits.com/musings/2013/dont-post-linda-elliss-the-dash/ ). Of course, not being a mind reader, I can’t be sure of her motives.

No matter what her motives, I believe “Linda Ellis Troll Caricature” — especially when embedded in a post criticizing Ms. Ellis– falls clearly under fair use. So, I wrote a counter DMCA.

Because I suspect Ms. Ellis may write take-down at other sites which display this image, and I want to ensure that the case for fair use has been explained to Ms. Ellis, I included a lengthy discussion of why “Linda Ellis Troll Caricature” is covered under fair use. (The take-down may be mistaken for other reasons as well.)

If someone like Karl Rove were to do it to threaten a host provider managing a Democrat legislator’s election website with a fake takedown notice, or someone like Rove on the left were to do it to a Republican incumbent candidate, this would get their attention. Because then they, personally would be the victims of this damage, and it could effect their ability to get elected back into office…

Dan Zabetakis
I predict that nothing will be done about this.
While the _stated_ aim of the DMCA sounds perfectly valid, the actual aim is to allow corporations to remove from the web anything they want. The onus is so completely placed on the target of the takedown notice that only in trivial cases like Retraction Watch can we expect the service providers to allow restoration of the articles. If someone with deep pockets makes it clear that they intend to pursue a DMCA claim (even a transparently bogus one) the material can be kept suppressed indefinitely.
The ISPs must remove material immediately upon receiving a takedown notice. They can only restore it if they decide they are willing to accept the risk or actuality of a lawsuit. That is the way the law was _actually_ intended to work.

The DMCA takedown process is so utterly flawed that the complete opposite of protecting copyright is happening. DMCA only works for megastars and criminals, all others have zero protection under the current process. It assumes that every piece of posted copyrighted material has a value high enough to warrant artists having a (US-based) legal team ready to jump into action to file federal suits to challenge fraudulent counter-claims. (Which I have been the victim of on more than one occasion). The process demands that this legal action take place within a tiny window of a couple of days.

Legitimate copyright owners are forced to go to the trouble and expense of proving their ownership (innocence), meanwhile, criminals simply need to send an email with no proof of ownership to get their stolen goods reinstated for global distribution.